Nafr High Court
Case Details
1 2025:CGHC:18708 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1532 of 2024 1 - Pardeshi Ram Sahu S/o Shri Pachkaud Sahu, Aged About 40 Years, R/o Bade Birejhar, P.S. Bori, District Durg, Chhattisgarh. 2 - Abhishek John S/o Late Shri Pradeep John, Aged About 37 Years, R/o EWS 538, Vaishali Nagar, Bhilai, O.P. Vaishali Nagar Bhilai, District Durg, Chhattisgarh. At Present Address-Village- Chunkatta, House of Arvind Nalvanshi, Post Office Selud, P.S. Utai, District- Durg, Chhattisgarh. versus ... Appellants 1 - State of Chhattisgarh Through Station House Officer, Police Station Ghumka, District- Rajnandgaon (C.G.) ... Respondent For Appellants
Legal Reasoning
: Ms. Itu Rani Mukherjee, Advocate. For State/Respondent : Ms. Sunita Manikpuri, Deputy Govt. Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal Judgmetn on Board 24-04-2025 1. Present Criminal appeal has been filed by the appellants under Section 374(2) of the Cr.P.C. against the impugned judgment of conviction and sentence dated 16-05-2024 passed by the learnes Sepecial Judge (NDPS Act) Rajnandgaon in Special (NDPS Act) Case No. 07/2018 whereby the appellants have been convicted for the offence under Section 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) and sentenced R.I. for 5 years with fine of Rs.50,000/- in default of payment of fine, additional R.I. for 3 months. 2. The brief facts of the case are that on 10-04-2018 Sub-Inspector of Police Digitally signed by MOHAMMAD AADIL KHAN 2 of Police Station Ghumka, District Rajnandgaon received a secret information that two persons are going towards Paarbhatha from village Gopalpur in their activa vehicle bearing registration No.CG 07 BF 0621 having Ganja with them. The said secret information was reduced in writing in rojnamcha sanha and the independent witnesses were called through constable Kiran Nishad. Two independent witnesses Ganesh Ram Sahu (PW-2) and Toran Lal Sahu (PW-9) were called, they were informed about the secret information and a panchnama was prepared. The necessity to search without warrant panchnama was also prepared in presence of the witnesses and the same along with the secret information was intimated to the Senior Police Officer by Suresh Sahu, Constable and the proceeding was endorsed in rojnamcha sanha, the police party proceeded towards place of incident along with the independent witnesses and intercepted the accused persons who were coming from Gopalpur side in the activa vehicle. They disclosed their names and thereafter, the police informed them about the secret information and asked to cooperate with the search and seizure proceeding. The police party have also gave their own search to the accused persons, but no incriminating articles were seized from their search. The right to be searched have been informed to the accused persons that they have right to be searched by police officer, Magistrate or Gazetted Officer, the accused persons gave their consent to be searched by police officer. On being search of the activa vehicle of the accused persons three packets were found which were kept in a white colour carry bag and the packets were wrapped with polythene tape which was kept in front leg space of the vehicle, whereas, another yellow colour carry bag was kept by the co-accused Pardeshi Ram Sahu who was the pillion rider of the vehicle. The yellow colour carry bag seized from Pardeshi Ram Sahu and the packets were recovered. On being physical verification by smelling, rubbing and tasting it was identified as Ganja. The 3 necessary panchnamas of the proceeding were prepared. The notice under Section 91 of the Cr.P.C. was given to the accused persons, but they failed to produce any document with respect to their possession of the alleged Ganja. On being weighment the Ganja was found 10 Kg. The police party seized the Ganja, activa vehicle, two mobile phones, driving licence of the accused Abhishek John and cash amount of Rs.22,000/- from accused persons and seizure memo has been prepared. The Executive Magistrate was also called through Constable Maghvendra for drawing samples and inventory proceeding and the weighment witness Nem Kumar Verma (PW-7) was also called and PW-5, Nayab Tahsildar Pritam Singh Chouhan has conducted the sample drawing procedure as well as inventory. After homogenization of the entire quantity of Ganja two samples of 50 gram each were separated and separately sealed. Accused persons, activa vehicle and seized Ganja were taken to police station and the FIR has been registered against the accused persons. Seized articles were kept in safe custody of Malkhana of the police station. The sample packets of Ganja were sent for its chemical examination to FSL, Raipur from where FSL report Ex.-P/44 was received and the Ganja was found in the sent articles. Statement of the witnesses under Section 161 of the Cr.P.C. have been recorded and after completion of usual investigation charge sheet was filed before the learned trial Court for the offence under Section 20(b)(ii)(B) of the NDPS Act against the appellants. 3. The learned trial Court has framed charge for the offence under Section 20(b)(ii)(B) of the NDPS Act. The accused persons denied the charge and claimed trial. 4. In order to prove charge against the appellants the prosecution has examined as many as 18 witnesses. Statement of the appellants under Section 313 of the Cr.P.C. have also been recorded in which they denied the circumstances appearing against them, pleaded innocence and have 4 submitted that they have been falsely implicated in the offence in question. 5. After appreciation of the oral as well as documentary evidence led by the prosecution the learned trial Court has convicted and sentenced the appellants as mentioned in the earlier part of this judgment. Hence, this appeal. 6. Learned counsel for the appellants would submit that the appellants are innocent and they have been falsely implicated in the case. She would fairly submitted that the appellants are not challenging their conviction, but challenging their sentence part as in the alleged offence excessive sentence has been awarded to them. Total 10 kg. Ganja has been allegedly seized from two accused persons for which they have been convicted for the offence under Section 20(b)(ii)(B) of the NDPS Act. Section 20(b)(ii)(B) of the NDPS Act does not provide any minimum sentence and provides that the sentence may extend to 10 years with fine which may extend to 1 lakh rupees. The appellant No.1 has already undergone about 1 and ½ years of jail sentence, whereas, appellant No.2 has already undergone his jail sentence for about 1 year and 4 months. Since there is no minimum sentence provided for the alleged offence, the appellants are presently aged about 46 and 43 years, they are having numerous family responsibilities, therefore, their undergone period may be considered to be sufficient sentence for the alleged offence. 7. Per contra, learned counsel for the State opposes the submission made by the learned counsel for the appellants and has submitted that the looking to the nature of offence and impact on the society, the appellants are not entitled for any leniency as the learned trial Court has already shown leniency and awarded less sentence to them. Therefore, the appeal is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the record of the 5 case. 9. Although, the appellants are not challenging their conviction, yet from the minute examination of the evidence led by the prosecution as well as Investigating Officer, PW-17 this Court find that the learned trial Court after adverting entire evidence of this witness, i.e., PW-17 Ganesh Ram Sahu as well as the other witnesses, rightly convicted the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act. Though, there is minor contradictions in their evidence, but the same are trivial in nature and does not affect substantial compliance of the provisions of the NDPS Act and from the entire evidence led by the prosecution it has duly been proved that on the date of incident total 10 kg. Ganja has been seized from the possession of the appellant, in which I do not find any infirmity or illegality, therefore, I uphold the conviction of the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act. 10. In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in (1977) 3 SCC 287 Hon’ble Supreme Court has observed that If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows: “9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817 : “The laws of England are written in blood”. Alfieri has suggested : 'society prepares the crime, the criminal commits it'. George Nicodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed. that the State has to rehabilitate rather than avenge. The sub- culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus 6 of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : “If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences'.” 11. Considering the submission made by learned counsel for the appellants, further considering the age of the appellants, nature of offence and quantity of Ganja seized from them, further the sentence provided for the offence under Section 20(b)(ii)(B) of the NDPS Act, this Court is of the opinion that ends of justice would meet if the sentence of the appellants is to be reduced. 12. Therefore, while maintaining conviction of the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act, their sentenced is reduced to R.I. for 2 years from R.I. for 5 years. Each of these appellants are also liable to pay fine of Rs.20,000/- and in default of payment of fine they shall undergone R.I. for 3 months. Appellant Pardeshi Ram Sahu remained in jail for about 6 months 20 days, and appellant No.2 remained in jail for about 4 months and 13 days during the trial, thereafter from the date of judgment, i.e., from 16-05-2024 both these appellants are in jail. They are 7 entitled for set off their undergone period during trial as well as during present appeal. 13. With the aforesaid modification and alteration, the present appeal is partly allowed. 14. The record of the trial Court be sent back to the concerned Court along with a copy of this judgment for information and necessary compliance. Sd/- (Ravindra Kumar Agrawal) Judge